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Pacific Employers Insurance Co. v. Travelers Casualty & Surety Co.

United States District Court, D. Connecticut

September 25, 2015


          For Pacific Employers Insurance Company, Plaintiff: Austin J. McGuigan, Joseph Bree Burns, Zisca R. St. Clair, LEAD ATTORNEYS, Rome McGuigan, P.C., Hartford, CT; Gary Svirsky, LEAD ATTORNEY, PRO HAC VICE, O'Melveny & Myers LLP - NYC, New York, NY; John Barden McDonald, LEAD ATTORNEY, O'Melveny & Myers LLP, New York, NY; Stephen Kress, LEAD ATTORNEY, PRO HAC VICE, O'Melveny & Myers-NY, New York, NY; Tancred Schiavoni, LEAD ATTORNEY, O'Melveny & Myers LLP - NYC, New York, NY.

         For Travelers Casualty and Surety Company, Successor, Aetna Casualty and Surety Company, Defendant: Karen L. Dowd, Wesley W. Horton, LEAD ATTORNEYS, Horton, Shields & Knox, Hartford, CT; Kevin J. O'Connor, Peter C. Netburn, LEAD ATTORNEYS, Hermes, Netburn, O'Connor & Spearing, P.C.,-Boston, Boston, MA.

         For Standard Fire Insurance Company, Defendant: Karen L. Dowd, Wesley W. Horton, LEAD ATTORNEYS, Horton, Shields & Knox, Hartford, CT; Peter C. Netburn, LEAD ATTORNEY, Hermes, Netburn, O'Connor & Spearing, P.C.,-Boston, Boston, MA.

         For Evanston Insurance Company, Defendant: Evan Shapiro, LEAD ATTORNEY, PRO HAC VICE, Skarzynski Black, New York, NY; Phyllis M. Pari, LEAD ATTORNEY, Letizia, Ambrose & Falls, New Haven, CT.

         For Saint Francis Care, Inc. d/b/a Saint Francis, Hospital and Medical Center, Defendant: Charles J. Fischette, Seth A. Tucker, LEAD ATTORNEYS, PRO HAC VICE, Covington & Burling, LLP-DC, Washington, DC; Gregory W. Nye, LEAD ATTORNEY, Bracewell & Giuliani, LLP - CT, Hartford, CT.

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         Stefan R. Underhill, United States District Judge.

         This case comes before me in a very unusual procedural posture. It is a declaratory-judgment action concerning the scope of several insurance policies purchased by a hospital, brought against the hospital and its primary insurance coverage providers

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by the hospital's excess coverage provider. It initially came before the late U.S. District Judge Mark R. Kravitz, and on April 19, 2012, he issued a Memorandum of Decision (doc. # 226) in which he granted a motion for partial summary judgment and denied two cross-motions for summary judgment. On August 3, 2012, he issued another Memorandum of Decision (doc. # 264), in which he granted a motion for reconsideration, analyzed the central issue raised in that motion, and " [held] fast to [his] original holding" ( id. at 2). In that second ruling, he also ordered briefing on a question raised in the motion for reconsideration but seemingly not anticipated by the complaint, and it is not clear whether he intended to rule on the question in the form of a supplement to his earlier summary judgment ruling, or as an aid to settlement or trial in the manner of a ruling on a motion in limine, or if he had some other motivation to order briefing. Whatever Judge Kravitz's intention, the parties filed the ordered briefs, and I heard oral argument on them. The parties raised two other disputed issues, and at the oral argument I granted them leave to file additional briefs.

         Then the parties awaited a ruling, though what kind of ruling was not exactly clear. There was no pending motion--only Judge Kravitz's order to brief an issue, the resulting briefs, the supplemental briefs that arose from oral argument, and uncertainty about what Judge Kravitz intended following the briefing. I requested that the parties file some sort of motion if they wanted a ruling, and pursuant to that request they made a filing styled as a " Joint Motion by All Parties" (doc. # 317), in which they summarize this procedural history--attaching Judge Kravitz's two decisions and the transcript of oral argument--and " jointly request that the Court decide the issue posed by" Judge Kravitz in his second ruling ( id. at 4). That joint request is curious, because the previous sentence says that the parties submit the Joint Motion " without prejudice to [their] respective positions as to whether and, if so, how" I should answer the question ( id. at 3). The implication of the " whether and, if so" is that at least some of the parties do not think I should answer it at all; and indeed, the plaintiff's initial briefing on the question states plainly that " it is not an issue on which [the] complaint seeks a declaration." PEIC'S Supplemental Mem. Allocating Defense Costs 3 (doc. # 307 at 7).[1] I have examined the complaint (doc. # 8) and I agree with the plaintiff that it does not call for a declaration on the question. Moreover, because no resolution to the question is necessary to reach any of the four issues on which the complaint does seek declarations--most of which were resolved by Judge Kravitz's rulings either expressly or by implication--I conclude that it would be improper for me to issue an opinion on it as this case is pleaded. The joint motion by all parties is therefore denied to the extent that it seeks a ruling on that question. To the extent that it merely seeks some ruling " as a means to move this case forward" (doc. # 317 at 3) after the seemingly open-ended way it was left in the wake of Judge Kravitz's order for further briefing, it is granted in the form of the following decision.

         I have examined the four requests in the complaint's Demand for Relief (doc. # 8 at 25-26) and Judge Kravitz's two rulings, and, as described more fully below, I conclude

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that giving full effect to Judge Kravitz's rulings clearly resolves the fourth request and nearly resolves the first two, or resolves them by implication. Answering the two questions raised in briefs and oral argument after Judge Kravitz's second ruling will clarify the resolution of the first two requests and will resolve the third, thereby disposing of this case. My ruling on those questions, decided from the record on summary judgment and as briefed by the parties on their cross-motions for summary judgment and in the briefing and argument that followed Judge Kravitz's second ruling, is as follows.

         I. Background and Procedural History

         This case arises out of the many claims brought in Connecticut state courts against St. Francis Hospital (the " Hospital" ) by victims of the late George Reardon. Reardon was an endocrinologist at the Hospital and is said to have sexually abused many children who were his patients over a period of several decades. The Hospital's insurers disagree about the scope of their respective policies and which of them are implicated by that litigation, and this declaratory-judgment action was filed to resolve the issue.

         In the relevant period of January 1981 to October 1985, the Hospital carried excess blanket catastrophe liability coverage from Pacific Employers Insurance Co. (" PEIC" ), which supplemented General Liability (" GL" ) and Hospital Professional Liability (" HPL" ) coverage from Travelers (January 1981 to October 1984) and Evanston (October 1984 to October 1985). The respective scope of each policy, and the associated duties to indemnify and to defend, are disputed in this litigation.

         Travelers' GL coverage part provides indemnity to St. Francis for " damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and [Travelers] shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage . . . ." Aff. of Maria T. Erkfitz (doc. # 130) Exs. A, C, and D. " Occurrence" is defined as " an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." Id.

         Travelers' HPL coverage part provides that[2]:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to any person arising out of the rendering of or failure to render, during the policy period, the following professional services:
(a) medical, surgical, dental or nursing treatment[3] to such person or the person inflicting the injury including the furnishing of food or beverages in connection therewith,
(b) furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances . . . ,
(c) handling of or performing post-mortem examinations on human bodies, or

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(d) service by any person as a member of a formal accreditation or similar professional board or committee of the named insured, or as a person charged with the duty of executing directives of any ...

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